How Did the Malheur Occupiers Get Away Scot-Free?

The fact that a jury found the Bundy brothers not guilty is baffling, and could embolden other anti-government extremists who think the federal government shouldn't own land

Oct 28, 2016
Outside
Outside Magazine
Portland;Oregon;Pacific Northwe

   Photo: Alex Milan Tracy/Sipa USA

No one expected this.

On Thursday, seven people involved in the six-week-long armed standoff with law enforcement at a wildlife refuge in Oregon earlier this year were acquitted by a jury of charges of conspiracy to impede federal workers. Two of the men, brothers Ammon and Ryan Bundy, were the ringleaders of the occupation, and have been quick to threaten violence and employ weapons to intimidate federal land officials in the past.

I’ve been covering this case since the defendants first shuffled into the Portland federal court on January 27. This verdict came as a shock to those of us—journalists from around the state—who have been paying close attention to the event. How could it be possible that, in a case where occupiers were filmed carrying guns at a federal refuge and photographed sitting at the desks of government employees, a jury would acquit?

Even some attorneys for the defendants were flummoxed. “I’m speechless,” said Robert Salisbury, counsel for defendant Jeff Banta, as he walked out of the courtroom. “It’s a stunning victory.”

In their closing arguments, the defense team argued that this was a political protest rather than a carefully thought-out conspiracy to impede officers. Defense attorney Marcus Mumford said that Bundy's "problem wasn't with federal employees—it was with their employer," the federal government. One defense attorney characterized the occupation as a "Martin Luther King-style sit-in." Another argued that the guns were there not to intimidate, but to get people around the world to pay attention to their protest. And throughout their closing, they poked at the government's use of nine confidential informants at the refuge—six of whom the government refused to identify in court.

By Friday, Juror #4 had come forward with his story. In an email to The Oregonian, he said the government simply did a bad job of convincing the jury of the charge: conspiracy. “It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove 'conspiracy' in the count itself—and not any form of affirmation of the defense's various beliefs, actions or aspirations,” he wrote. “The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.’"

From the start, it was a case rife with bizarre twists and turns. Four days into deliberations, for example, Juror #11 was sent home after Juror #4 sent a secret note to the judge that #11—who had formerly worked for the Bureau of Land Management—was biased. By Thursday morning, #11 was gone, replaced by an alternate. Verdicts were reached just six hours later.

Moments after the verdict was announced, defense attorney Mumford was tased on the floor of the courtroom by U.S. Marshals. After demanding in animated fashion that his newly acquitted client, Ammon Bundy, be released from jail, Mumford was pounced on by marshals. During the ensuing wrestling match, Judge Anna Brown yelled to evacuate the courtroom. Mumford was cited on charges of disorderly conduct and released later Thursday night. (Bundy and his brother, Ryan, remain behind bars due to pending charges against them in Nevada for a 2014 armed standoff at the family’s ranch there.)

Outside the courthouse, supporters paced the sidewalk, shouting passages from the U.S. Constitution. “That’s why we have Article 1, Section 8, Clause 17 of the Constitution!” defendant Shawna Cox shouted. That clause—and, by extension, the jury’s verdict—proves that the federal government can’t own land “except for arsenals, dockyards and stockyards,” Cox said. “Read it! Teach it to your children, people!”

Law experts I talked to emphasized this was a victory on conspiracy charges—not a reinforcement of their Constitutional interpretation limiting the government's ability to own land. Michael Blumm, a professor at Lewis & Clark Law School in Portland and a scholar on environmental and public lands laws, says he was “astonished” by the jury’s decision. “It really doesn’t change the underlying law,” Blumm says. The federal government can—and obviously does—own land. “This really isn’t going to have an effect on the law as it’s interpreted by courts, because it’s so clear and it’s been so clear for so long. But it could have an effect on politics.”

Blumm says any repercussions depend on what happens in the Bundy’s next case, which is scheduled to go to trial in February. “If this jury result and whatever goes on in Nevada next year continues to fuel a political rebellion, that might produce a congressional action under the property clause to dispose of federal public lands,” Blumm says. “As far as we know, that’s certainly a possibility.”

Late Thursday night, supporters outside the courthouse raged on, waiting for David Fry (whom we wrote about earlier this month) to be freed from jail. They danced in the rain with American flags, and chanted, “Not guilty!” Defense attorneys ambled over from an after-party and hugged those who stayed. One attorney, Matthew Schindler, said the prosecution simply made “tactical errors.”

But environmentalists I spent the morning talking with say that despite its professed lack of affirmation, the jury emboldened an already volatile group of people. “I’m really worried about federal land managers,” says Kieran Suckling, of the Center for Biological Diversity. “The militia thinks it is totally legal to go to a federal facility with guns and take it over and threatened federal employees, and that’s what they’re going to do.”

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